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Status of the Orphan Works bill

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This article series was published in 2006. The 2008 legislation is very different.

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Status: September 27, 2006

We have great news! The latest Orphan Works bill (the Copyright Modernization Act of 2006, HR 6052) appears to have died in committee. On Wednesday, Sept. 27, the bill’s sponsor, Rep. Lamar Smith (R-TX), announced that he was withdrawing the bill from consideration at that markup session, which is likely to be the last one this year. He said that he did not see any reasonable chance that it would be signed into law in the current Congress. He also said that he plans to introduce another bill when the new Congress convenes next year.

The efforts of ASMP and its allies in representing and organizing members’ opposition to the bill, bolstered by individual photographers and illustrators, played a significant role in stopping the legislation. In addition, Rep. Smith’s move of tying the Orphan Works legislation to a digital music licensing bill appears to have created the additional opposition needed to stop the bill in this Congress.

This battle has been won, and we can breathe easier for a while. But the war is not over. ASMP will be watching closely to be sure that the bill does not suddenly reappear in any late-fall, “lame duck” session. And we will start drafting our own version of a new bill, favorable to photographers and artists, for possible introduction in the next Congress.

Status: September 20, 2006

For the second week in a row, the House Judiciary Committee held a markup session without reaching the Orphan Works legislation (now part of the “Copyright Modernization Act of 2006”), despite that bill’s having been placed on the markup calendar. The shrinking number of working days available for Congress to act, combined with the pressure of legislation that absolutely requires its attention before this Congress ends, means that every day that there is no action on this bill is good for us. Subcommittee Chairman and bill sponsor Lamar Smith still hopes to get this bill on next week’s markup calendar, but as has been the case for the past two weeks, only time will tell.

In the meantime, we have been negotiating a number of possible amendments to improve the bill, in case it does come to a vote. With considerable help from the ranking minority member of the Subcommittee on Intellectual Property, Rep. Howard Berman of California, Chairman Smith has agreed to offer an amendment that would be of substantial benefit to photographers and other creators. The primary result of the amendment would be that the Copyright Office would be directed to create a searchable on-line database of copyright registrations, including digital copies of deposit materials. The effective date of the bill would be delayed until the Copyright Office had this system in place and functioning, but not later than 5 years. (Here's the draft text of the amendment; the database provisos begin on page 7. Page numbers refer to the original draft of HR6052.) This amendment is by no means a solution to all of the problems presented by the Orphan Works legislation, but it is a significant improvement.

We will continue to represent you and other freelance creators of copyrighted works vigorously and will keep you informed of developments as they occur. We will also let you know when and how you can help us by contacting your representatives in Congress. For now, we thank you for your past responses to our requests, and we recommend that you not take any further action. At least for the time being….

Status: September 13, 2006

Earlier this week, Rep. Lamar Smith (R, TX), who last spring introduced the Orphan Works bill (HR 5439), made an unanticipated move towards trying to pass Orphan Works legislation before this Congress ends. On Monday, Sept. 11, he proposed a new bill incorporating a new music licensing bill, the Orphan Works bill, and several other changes to the Copyright Act. He immediately placed it on the markup calendar for full House Judiciary Committee action scheduled to take place only two days later, on Wednesday, Sept. 13. The new bill, which is 100 pages long, is tentatively numbered HR 6052 and is called the Copyright Modernization Act of 2006. Most of the bill concerns music licensing, and the Orphan Works part appears on pages 86-96. The Orphan Works provision appears to be unchanged from the language in the earlier Orphan Works bill, HR 5439.

Once ASMP became aware of the new bill, we started coordinating activities with other organizations and contacting members of the House Judiciary Committee and their staffs to try to prevent action on the bill, or to amend at least some of its language. ASMP’s General Counsel, Victor Perlman, attended the markup session and was gratified to hear that the bill was being pulled from that day’s markup calendar at the beginning of the session.

ASMP is checking with sources on Capitol Hill to see whether there is any significant chance that the bill will be placed on another markup calendar later this year, or whether it is likely to die without further action in this Congress. If it dies in this Congress, proponents of an Orphan Works bill will have to have a new bill introduced in the next Congress (next year), and the whole process will begin again from square one.

ASMP fully expects that, if this Congress ends without passing the bill, the copyright-user community will not rest and will seek to have a new bill introduced next year. Whether this year or next, we will continue to work with other organizations and with you, our members, to fight to stop this legislation, or at the very least, to make it fairer to our members, using all of the resources available to us. We thank you for your support and will continue to keep you informed of events as they develop.

Status: August 22, 2006

The backroom battle over the “Orphan Works” bill (HR 5439) continues. ASMP has issued several calls to its members to wage a fax campaign in Congress, in coordination with other organizations representing all types of visual artists. The creative community has responded well, and as of this writing, we hope that these grass-roots efforts, combined with the time pressures imposed on Congress by the calendar in this election year, will cause the bill to die. If that happens, any attempts to push this type of legislation will have to start from scratch, with the introduction of a new bill when a new Congress convenes in January.

In the meantime, ASMP has been engaging in continuing discussions with legislators and their staffs in both the House and Senate. Improvements to the bill are in the works, although as this report is being written, it is too early to report on them. In any event, ASMP’s primary goal is not to improve this legislation, but to prevent it from being enacted. We will keep you posted on developments, as they occur, and we thank you for all your support in fighting to protect your copyrights!

Status: July 11, 2006

Act now — contact members of the House!

Dear ASMP Member:

This call to action is part of a joint effort among the informal coalition of trade associations representing photographers, artists, illustrators, and — most recently — writers and textile manufacturers, in connection with the Orphan Works legislation. It is time, once again, for you to be heard in Congress on the subject of HR 5439, the Orphan Works bill that has been introduced in the House. We are asking you to contact your representatives in the House and, in addition, the members of the House Judiciary Committee. Instructions for identifying and contacting them appear below. (Alternatively, see our Tools page.)

We believe that Rep. Lamar Smith (TX, 21st; Chairman of the Subcommittee on Courts, the Internet and Intellectual Property) will try to move this bill through the full Judiciary Committee as soon as he realistically can, so it is important that you contact these lawmakers right away.

It is especially important for Californians to take action, since the Ranking Minority Member of the Subcommittee, Howard Berman (CA, 28th), and Subcommittee member Darrell Issa (CA, 49th) are particularly sensitive to our interests.

In addition, Reps. Bob Goodlatte (VA, 6th) and Howard Coble (NC, 6th) seem interested in helping. Further, Rep. John Conyers (MI, 14th) is especially responsive to the needs of writers.

When you contact these particular legislators (the ones named above), please be sure to start out by thanking them for their appreciation of and interest in the unique problems that the bill presents for creators of copyrighted materials, photographers, artists, writers and textile designers.

Here is the suggested text that you can edit, copy and paste onto your letterhead for faxing. (If you prefer, download it as a Word file.) Please note that you have to write your own introductory sentence. In it, if you are a constituent of the recipient, you should say so right away. You should also state what your profession is. In those letters that go to the individuals named above, you should thank them for their sensitivity to our issues. The rest, you can copy and paste, but you should also feel free to edit. Don’t forget to sign it at the end.

Thank you for your help and support!

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Model letter

The Honorable ______ ____________
U.S. House of Representatives
Washington, DC 20515

Via Facsimile

RE: HR 5439

Dear Rep. _______________:

(INSERT INTRODUCTORY SENTENCE OR SENTENCES). If enacted, HR 5439 would be devastating to creators of copyrighted works. In particular, I and other creators of visual arts, such as photographers, artists, illustrators, and creators of fabric designs would be at risk of losing a substantial part of our income from licensing copyrighted works. The fact is that most commercial images are published without any attribution to their creators and are at great risk of becoming “orphan works.” This fact is against the wishes, but outside the control, of the creators. I am urging you either to vote against HR 5439 or, if you feel that you must support the Bill, to seek and support some much-needed amendments to it.

The basic approach of the Bill is fundamentally flawed. Its effect would be to create compulsory licenses for all works whose owners cannot be located. However, unlike all other compulsory licenses of copyrighted works, this license would often be free. That underlying unfairness, which would be retroactively applicable to all existing copyrighted works, is fatal to the reasonableness of the Bill. I ask you to vote against it.

If you feel that you must support the Bill, it desperately needs to be amended in the following areas:

1. Most importantly, the Copyright Office has told trade association representatives that it will never make its inventory of copies of images searchable on line by any members of the public. That is simply an unreasonable position and one that virtually guarantees that many copyright owners can never be found. There is currently available on the market image-recognition software that would allow a searcher with an image to locate matching images, and the related copyright information, but the Copyright Office will not allow the public to search its deposit copies on line.

   I urge you to require the Copyright Office to change that position and, in fairness to all, to set the effective date of HR 5439 to a time when the Copyright Office’s inventory of deposit copies is searchable by the public on line.

2. The so-called Safe Harbor provisions (“Limitations on Remedies”) are far too broad and take large amounts of revenues out of the pockets of already underpaid photographers, artists and writers. I urge you, at the very least, to limit the safe harbor to situations where the use is:

   1. by individuals acting in a personal, non-commercial capacity, or by non-profit educational institutions, museums or libraries, and
   2. for a scholarly or educational purpose, and
   3. performed without any purpose or foreseeable effect of commercial advantage, and
   4. where the infringer did not know, and had no reason to believe, that the copyright owner would normally have charged a fee for the use actually made by the infringer.

3. The Safe Harbor provisions relating to injunctive relief need to be changed in several areas, including the situation where an infringer negotiates a reasonable fee, but then fails to make payment.

4. The “Special Rule for New Works” needs revision to reflect the language of the Copyright Office’s original report by requiring “the infringer’s SIGNIFICANT AMOUNT of original expression in a new work of authorship.”

5. The sovereign immunity provision (“Treatment of Parties Not Subject to Suit”) requires amendment so that if an infringer asserts the defense of sovereign immunity, he cannot also assert an orphan work defense in the same matter.

Thank you for your time and understanding. I cannot emphasize how devastating to my business this Bill would be if it were enacted in its current form. It is not an “Orphan Works” bill — it is a bill to revoke the copyrights of creators of visual artworks and writers.

Respectfully yours,
sign your name

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Instructions for faxing

If you do not know your local Representative’s name, visit www.house.gov/writerep/ and enter your state and zip code.

Once you know who your Representative is, go to www.house.gov/house/MemberWWW.shtml to find the Representative’s home page using the alphabetic list. The home page will have a “contact” link for fax numbers and other info.

Here are the members of the House Judiciary Committee. Following their names are R or D for Republican or Democrat, followed by the state and district that they represent and their fax numbers:

Rep. F. James Sensenbrenner, Jr. (R, WI-5th) (Chair, Judiciary Committee)
202-225-3190

Rep. Henry J. Hyde (R, IL-6th)
202-225-1166

Rep. Howard Coble (R, NC-6th)
202-225-8611

Rep. Lamar Smith (R, TX-21st) (Chair, Subcommittee on Courts, the Internet, and Intellectual Property)
202-225-8628

Rep. Elton Gallegly (R, CA-24th)
202-225-1100

Rep. Bob Goodlatte (R, VA-6th)
202-225-9681

Rep. Steve Chabot (R, OH-1st)
202-225-3012

Rep. Dan Lungren (R, CA-3rd)
202-226-1298

Rep. William Jenkins (R, TN-1st)
202-225-5714

Rep. Chris Cannon (R, UT-3rd)
202-225-5629

Rep. Spencer Bachus (R, AL-6th)
202-225-2082

Rep. Bob Inglis (R, SC-4th)
202-226-1177

Rep. John Hostettler (R, IN-8th)
202-225-3284

Rep. Mark Green (R, WI-8th)
202-225-5729

Rep. Ric Keller (R, FL-8th)
202-225-0999

Rep. Darrell Issa (R, CA-49th)
202-225-3303

Rep. Jeff Flake (R, AZ-6th)
202-226-4386

Rep. Mike Pence (R, IN-6th)
202-225-3382

Rep. J. Randy Forbes (R, VA-4th)
202-226-1170

Rep. Steve King (R, IA-5th)
202-225-3193

Rep. Tom Feeney (R, FL-24th)
202-226-6299

Rep. Louie Gohmert (R, TX-1st)
202-226-1230

Rep. Trent Franks (R, AZ-2nd)
202-225-6328

Rep. John Conyers, Jr. (D, MI-14th) (Ranking Member, Judiciary Committee)
202-225-0072

Rep. Howard L. Berman (D, CA-28th) (Ranking Member, Subcommittee on Courts, the Internet and Intellectual Property)
202-225-3196

Rep. Rick Boucher (D, VA-9th)
202-225-0442

Rep. Robert C. Scott (D, VA-3rd)
202-225-8354

Rep. Mel Watt (D, NC-12th)
202-225-1512

Rep. Zoe Lofgren (D, CA-16th)
202-225-3336

Rep. Sheila Jackson-Lee (D, TX-18th)
202-225-3317

Rep. Maxine Waters (D, CA-35th)
202-225-7854

Rep. Marty Meehan (D, MA-5th)
202-226-0771

Rep. Robert Wexler (D, FL-19th)
202-225-5974

Rep. Bill Delahunt (D, MA-10th)
202-225-5658

Rep. Adam Schiff (D, CA-29th)
202-225-5828

Rep. Linda Sánchez (D, CA-39th)
202-226-1012

Rep. Chris Van Hollen (D, MD-8th)
202-225-0375

Rep. Debbie Wasserman-Schultz (D, FL-20th)
202-226-2052

Rep. Jerrold Nadler (D, NY-8th)
202-225-6923

Rep. Anthony Weiner (D, NY-9th)
718-520-9010

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Status: May 22, 2006

Orphan Works bill introduced into House. Download the bill here.

Message from Victor Perlman to all ASMP members:

Dear Friends,

After months of closed-door negotiations, Chairman Smith has drafted an Orphan Works bill, H.R. 5439. It will probably have been introduced by the time you read this. A copy of the draft is attached.[download]

As you can see if you compare the attached draft with the original Copyright Office proposal, we have been able to achieve a number of significant improvements for the benefit of photographers and artists. Despite those successes, we believe that there are some areas that still need to be changed, such as the so-called "safe harbor" (limitations on monetary relief). Because of that, we will be calling on you within the next several days to contact your representatives in the House to ask for additional changes.

I am currently on the road and will be back to you as soon as I can. In the meantime, I wanted to get this information out to you as quickly as possible.

Thank you for your patience, your support and your help.

Best regards,
Vic
--
Victor S. Perlman
General Counsel and Managing Director
American Society of Media Photographers, Inc. (ASMP)

Status: April 10

On April 6, ASMP General Counsel Victor Perlman gave a statement regarding ASMP's preferred approaches to copyright dispute resolution to the Senate Judiciary Committee. This position paper is downloadable from the ASMP archive; it is substantially similar to the testimony given to the House subcommittee last week.

©2006 Matthew Barrick

More photos from the Committee hearing

In a supplementary submission to the Committee, Victor Perlman traced the history of previous efforts by photographers to establish licensing collectives like those found in the music industry. He also outlined the role of industry registries (including ASMP's own Find A Photographer and Find A Photo) and the market reality that governs credit lines. The supplementary statement is downloadable here (PDF, 70 kb).

Status: March 31, 2006

Monday, Mar. 27, was another negotiating session in connection with the House Judiciary Committee hearings on the Orphan Works legislation proposed by the Copyright Office. Next week, the meeting will include discussions directly with Committee Chair Lamar Smith and, probably, with Ranking Member Howard Berman. Meetings are still under House gag rules, so that’s all we can say for now.

Panel on Small Claims Courts and Other Alternatives

On Wednesday, March 29, ASMP General Counsel Victor Perlman delivered a statement before the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property regarding small claims courts and other alternatives to resolution of copyright claims. The other panelists were Brad Holland, of Illustrators Partnership of America; Paul Aiken, of the Authors Guild; and Jenny Toomey, of Future of Music Coalition. This hearing was about exploring the possible need for and interest in some sort of alternative method of resolving copyright claims with relatively small dollar amounts at issue.

The testimony presented by each of panelists is available at the Judiciary Committee’s web site. (Victor Perlman's statement is downloadable here, as well.) The Copyright Office also submitted a written statement.

A streaming video of the Committee session is available. If you prefer, you can download a QuickTime movie of Victor Perlman's part of the testimony. (NB. File is 14 megabytes.)

Status: March 24, 2006

As intense discussions continue behind closed doors in Washington, the associations that represent visual artists are working together to protect our shared interests.

Thanks to your faxes and the strong inter-association relationships that ASMP has worked hard to re-establish these past few years, David Trust of the Professional Photographers of America (PPA), Steve Metalitz on behalf of the Picture Archive Council of America (PACA) and our own Victor Perlman continue to participate in meetings with Congressional aides regarding the critical changes being proposed to the Orphan Works legislation. To date, these three negotiators are the only formal representatives for visual artists that Congress has allowed at these meetings. The following associations have granted this team the right to speak on their behalf: APA, EP, SAA, GAG, IPA, NPPA, CAPIC and AOP amongst others.

We truly appreciate the support of these associations, especially in light of the severe Congressional confidentiality rules that prohibit the negotiators from sharing any substantive information about the discussions. (Even the ASMP board of directors is not privy to the specific talking points or results of these ongoing efforts!) Our thanks in particular to EP’s members and leadership for lending their trust to the negotiating team.

APA has provided an excellent summary and analysis of the various Orphan Works issues facing visual artists. You can download the PDF of this report here. This is mandatory reading for those of you who want the complete picture of the impending catastrophe. We thank APA for this valuable document.

The proposed amendment is being pushed through very aggressively by a large, well-funded group of proponents. We are working hard to present a unified front aimed at protecting the interests of all visual artists, and we thank our fellow associations that are supporting this excellent team of negotiators. We will continue to keep you informed as more information is available.

—Eugene H. Mopsik
   Executive Director
   American Society of Media Photographers

Background

ASMP's involvement with the current Orphan Works issues goes back to the beginning of 2005. For your information, on January 26, 2005, a Notice of Inquiry regarding Orphan Works was published in the Federal Register and the newsletter of the Copyright Office. On March 25, 2005, ASMP filed initial comments. On July 7, 2005 the Notice of Public Roundtables was published, and ASMP requested and received a seat at the Washington, D.C. meetings held on July 26, 2005. Also participating were PPA, GAG and PACA. In late October of 2005, ASMP, PPA and PACA were invited to a small group discussion held on November 18th with representatives of the Copyright Office. All of this preceded the current closed-door discussions.

Status: March 20, 2006

After a further week of intense activity and closed-door meetings, we can see a small ray of hope.

On Monday, March 13, ASMP counsel Victor Perlman, PPA Executive Director David Trust and PACA counselor Steve Metalitz met with House staffers and representatives of a small number of users’ groups in a closed-door meeting held under House rules of confidentiality. In addition to PPA and PACA representing the interests of their combined memberships, ASMP represented their members in addition to SAA, GAG, IPA, EP, NPPA and CAPIC, among others. The meetings were exploratory and ran the gamut from dispassionate to heart-felt, but were always controlled and professional. Last Friday, March 17, a set of joint proposals for changes in the proposed legislation were submitted for consideration, and another closed-door meeting is scheduled for Monday, March 20, with additional meetings tentatively scheduled for the following two Mondays.

On Wednesday, March 15, Victor Perlman met with senior legislative counsel for Senator Leahy to specifically discuss the Orphan Works issues facing photographers and illustrators. It turns out that Senator Leahy is very sympathetic. He is an avid photographer and his son is an AP photographer. Senator Leahy’s counsel was very interested in hearing about possible proposals to lessen the impact of the proposed legislation. Specifically, the creation of image databases, the inclusion of copyright notice and registration into the workflow of existing image management software, and the functionality of such entities as PicScout and ImageTracker were of interest. The meeting went on for an hour and half, and Victor reports that Senator Leahy is perhaps our best friend in Congress.

Finally, on Thursday, March 16, Victor Perlman participated in roundtable discussions conducted by the Copyright Office on possible changes to Section 108 of the Copyright Act. Section 108 creates an exception that allows libraries and archives to make limited copies of works for preservation and restoration. The possibility of expanding this exception because of the impact of digital media is being explored. ASMP is concerned about the possibility of unauthorized copies being accessed in the future by unauthorized users.

We will continue to keep you informed of our efforts and progress as more information is available.

—Eugene H. Mopsik
   Executive Director
   American Society of Media Photographers

Status: March 10, 2006

Things are moving fast on the Orphan Works legislation. As of March 10, there is good news and bad news.

The good news is that your faxes to the Congress definitely were noticed. All of the Senators and Representatives are keenly aware of who we are, and photographers will continue to have "a seat at the table" as this proposal moves forward.

The bad news is that the proposal is moving forward, and it is moving forward quite rapidly. The chairman of the House Judiciary Committee, Lamar Smith, has said he wants the language finalized and a bill introduced by the end of March. We have not gotten the major changes we hoped for, and many of the members of the House committee are not especially sympathetic to our position. The Senate committee is not rushing quite so fast, but there too, the clear intention is to pass a bill.

We will continue to work both on Capitol Hill and behind the scenes. It now looks unlikely that we can get the kind of bill we would like, but we may be able to blunt some of the harm this bill will do.

Beginning next week, Congressional staff will be holding closed-door meetings with representatives of the Copyright Office, the major user communities and the creative community. Fortunately, ASMP, PPA and PACA have been invited to participate on behalf of all visual artists. We will let you know how things turn out and what you can do to help.

Of course, we cannot count on the success of our legislative efforts. So, at the same time, ASMP is also investigating what technology solutions might be useful to photographers if this bill does pass.

In the meantime, you can temporarily stop sending faxes to Congress. We have made our point. At some point in the future, it will be time for a second round of pressure politics — but for now, take a well-earned break.

Again, thanks for your impressive work over the past few days. It made a difference.

—Victor Perlman
   General Counsel and Managing Director
   American Society of Media Photographers, Inc.